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The ITO, GNR Ward-1, Gandhinagar Versus Shri Babuji Laxman Dabhi

Reopening of assessment - TDS deduction u/s. 194C(2) - section 40(a)(ia) disallowance - Held that:- The Revenue fails to highlight even a single case involving payment exceeding the threshold pecuniary limit of ₹ 50,000/- u/s. 194C(5) proviso of the Act. We hold in these facts and circumstances that the Revenue’s contentions in support of both of its substantive grounds are devoid of merits. We reiterate our findings hereinabove that the Assessing Officer had called for specific details, a .....

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idity of impugned reopening as well as merits. - Decided against revenue - ITA No. 2040/Ahd/2012 - Dated:- 6-5-2016 - Shri Anil Chaturvedi, Accountant Member And Shri S. S. Godara, Judicial Member For the Revenue : Mrs. Somugyan Pal, Sr. D.R. For the Assessee : Shri Pritesh L. Shah, A.R. ORDER Per : S. S. Godara, Judicial Member This Revenue s appeal for A.Y. 2006-07, arises from order of the CIT(A), Gandhinagar dated 25-06-2012 in appeal no. CIT(A)/GNR/219/2011-12, in proceedings under section .....

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fficer thereafter took up scrutiny. He completed a regular assessment on 11-12-2008 assessing taxable income of ₹ 6,72,440/-. First round of assessment appears to have attained finality at this stage. 4. It transpires from the case file that the Assessing Officer thereafter formed reason to believe that assessee s income liable to be assessed had escaped assessment. He issued section 148 notice dated 07-03-2011 for the following reasons:- 2. As required, the reasons for reopening of assess .....

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unts (P&L as well as balance sheet) though the assessee had ongoing works. However, in the asset side of the balance sheet, an amount of ₹ 36,88,466/- has been shown as receivable(sundry debtor) from the Executive Engineer, Capital Project, Gnndhinagar. Since the assessee was following 'mercantile' system of accounting, an amount of ₹ 36,88,466/- was also required to be included in the total receipts as the same was accrued. It was also noticed that us per Section 40(a)(i .....

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was observed from record that during the previous year relevant to A.Y.2006-07, the turnover of the assessee was ₹ 127,56,5844/- and the assessee had made 'job work payments to sub-contractors amounting to Rs,86,34,086/-. As per section 194C(2) of the Act, TDS was deductible from the above payments. However, the auditors have stated in the certificate in form 3CD that no TDS has been deducted by the assessee during the previous year relevant to A .Y .2006-07. Since the assessee had mad .....

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l does not raise any issue qua former reason of reopening. The assessee had paid the impugned amount of ₹ 86,34,086/- for job work payment to subcontractors without deducting TDS. The Assessing Officer invoked the impugned disallowance thereupon u/s. 40(a)(ia) by concluding that these payments ought to have been subjected to TDS deduction u/s. 194C(2) of the Act. 6. The assessee preferred appeal. His first ground challenged validity of reopening by terming it as mere change of opinion. He .....

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no adverse view was taken. This is a clear case of change of opinion. ii) The case has been reopened not on logical belief but on the basis of presumptions and surmises which are not true. I have gone through the relevant facts of the case, the reasons recorded for reopening, the regular assessment order passed u/s 143(3), the audit report filed with the return, the reassessment order, the submissions of the assessee and the law related to the issue. The reasons recorded, as reproduced earlier i .....

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the balance sheet. The issue has been discussed while deciding the ground in para.6, above. I have already held that the belief of the AO on this count is not an honest belief and the addition is based on illogical conjectures and incomplete understanding of accountancy to say the least. Circumstances must exist and can't be deemed to exist and belief should be honest and not based on suspicion, gossip or conjecture; East West Commercial Co Ltd 128 ITR 326 (Cal). In the light of these facts .....

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estioned while reopening] the case at the time of regular assessment proceedings for order u/s 143(3) [query no. 10 of letter issued u/s 142(1)] dated 27-07-2008 and also asked for the detail of the amounts outstanding under this head amounting to ₹ 26,93,500/- [query no. 15 of letter issued u/s 142(1)]. He had also commented in the assessment order that these have been verified. The following comments / observations made in the assessment order make it apparent that the expenses have been .....

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.3, page-1 & 2 of the assessment order) As far as the audit report in Form 3CD and comments in Col.27 read together in sub-column (a) & (b) are concerned, the comments are not very specific. If there was in fact some infringement of TDS provision as per law then the details was required to be given in column 27(b), which he has not given. Read with the consideration of the very expenses by the AO in the v original assessment, as discussed above, it is but apparent that the issue has been .....

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d no. 3 is on the merits of the disallowance u/s 40a(ia). The disallowance depends on whether the payments are actually to the persons as claimed by the assessee or not. Even if for argument sake, if the expenses are not held verifiable; for disallowance u/s 40(a)(ia) it requires to be proved that the payments/payables to some other persons was above ₹ 50,000/- each. As the re-opening of the case and therefore the subsequent assessment are held invalid, the issue therefore does not require .....

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